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ADARKWA v. NKRUMAH


  • New
  • 1961-09-27
  • HIGH COURT
  • GLR 548-550
  • Print

DJABANOR, J.


Summary

Arbitration?-All rights merge in the arbitration award?-A party can only sue to enforce the award; he cannot rely on original rights.

Headnotes

The plaintiff borrowed an amount of G55 from the defendant. When he failed to repay it on the due date, the defendant seized the plaintiff's vehicle with a view no doubt to selling it to repay the debt. The matter was reported to the office of the Motor Union, Kumasi. Both the plaintiff and the defendant agreed that the officers of the union settled the matter. They settled it on terms that the defendant should repair the vehicle and make it roadworthy, and hand it back to the plaintiff to work with it to repay the cost of repairs and the original debt. The defendant failed to repair the vehicle. The plaintiff sued him in conversion for G740 "being the value of the vehicle".

Judgement

ACTION for damages for conversion of a motor vehicle.

JUDGMENT OF DJABANOR J.

This is a claim by the plaintiff against the defendant for G740 being the value of vehicle No. AS 5609 which the defendant has wrongfully converted to his own use. In his particulars, (and indeed in his supporting evidence), the plaintiff alleged that he borrowed an amount of G40 from defendant and that defendant charged him the exorbitant interest of G15 thereon. When he failed to pay the loan at the stated time the defendant seized his vehicle and has kept it in his custody ever since. The plaintiff invited me to declare that the loan is unenforceable and the written agreement made to evidence the said loan void and of no effect; and that the seizure of the vehicle in the purported enforcement of the payment of the debt is also wrongful and unjustifiable.

The pleadings disclosed that this matter was taken to the Motor Union office at Kumasi where it was settled to the satisfaction of the parties. The issue as to the validity and effect of this arbitration was not settled as an issue, but in my view it should be the first and most important issue and I will consider it first.

In my view, and having regard to the facts and the authorities, there was a valid submission by the parties to the arbitration of the Motor Union. This was alleged by the defendant and not denied by the plaintiff. Furthermore, the evidence of both the plaintiff and the defendant leaves no room for doubt that both of them agreed to pay one guinea each so that the Motor Union officials might settle the matter between them [p.549] amicably. In fact according to the plaintiff the Motor Union people said the parties should each pay one guinea and the union would settle the matter by asking the defendant to repair the vehicle for the plaintiff to work with and then pay the cost of repair in addition to the existing debt. Counsel for the plaintiff then put the following question to plaintiff: "Did you understand this settlement to mean that if they settle the matter successfully that would curtail your further action in the matter?" The plaintiff's answer was: "Yes I agreed so, but I further said that if they did not settle it well I would take the matter to some other place." The evidence points to the fact that the plaintiff was satisfied with the settlement. The award was in the exact terms as the plaintiff had been promised. It was tendered as exhibit B and it is in the following terms:

"This agreement made and entered into this day 2nd November, 1958 between Mr. Kofi Paw of Asakraka under Akropong Ashanti Atwima Local Council, No.2 Kumasi District, and Mr. Yaw Marnu of Hyiawu Besease Loan the sum of fifty-five pounds (G55) for the purpose of maintaining his lorry without interest. The principal Debtor Mr. Yaw Marnu said he will pay the money as follows:

1. December ending 1958 Twenty pounds (G20)

2. January ending 1959 Twenty pounds (G20)

3. February ending 1959 Fifteen pounds (G15)

CONDITION OF AGREEMENT

That the second party has promised in his good faith that the time promised will not be failed.

And failing to the promises the second party can sue in any court of Justice for recovery of the same.

N.B. And Mr. Kofi Paw have the power to withdraw my lorry No. AS 5609 and the particulars as well.

This agreement has been repeated in Twi to the parties concerned and certified as Finger prints below:

Yaw Marnu

Principal Debtor (2d. stamp)

Amma Sakyiwah

Personal surety"

The plaintiff is literate and he signed the award. I am satisfied that the arbitration is valid and the award binding upon the parties.

It was argued by the plaintiff's counsel that since the arbitration was not respected by the defendant in that he failed to repair the vehicle, the plaintiff's former remedy remained open to him. With respect I am unable to agree. In my view (and I have the authority of Halsbury's Laws of England (3rd ed.) Vol. 2, page 44, para. 98) all the former rights of the parties became merged in the arbitration and upon publication of the award the only remedy left is for the party in whose favour an award is made to have it enforced according to the terms of the award. In my view, therefore, once the award dated the 16th October, 1959 had been accepted by both parties, if the defendant failed (as was suggested by the plaintiff) to have the vehicle repaired, his remedy lay in bringing an action to have it enforced and not an action based on the former matters in difference prior to the arbitration. [p.550]

In my judgment therefore this claim for conversion must fail and I dismiss it accordingly. In view of my decision on this point I will not record my findings on the facts in respect of the claim for conversion.

There will be judgment for the defendant with costs.

Decision

<P>Action dismissed.</P>

Plaintiff / Appellant

Asumadu Sakyi

Defendant / Respondent

O. Amankwatia

Referals

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